Rape by Deception

Sexual misconduct by lying or withholding

Can sex be wrong if you withhold information or lie about yourself before having sex? It certainly seems so. For example, not being honest about having a sexually transmitted disease can make it wrong for you to have sex.

Let’s call dishonesty intended to increase the chance of having sex ‘sexual deceit’. Sexual deceit includes both failure to disclose information about yourself as well as lying about yourself. The question is under what circumstances sexual deceit will make a sexual act morally problematic.

Deceiving another person in order to have sex with them is morally wrong when it prevents the other person from giving fully informed consent to the act (Rubenfeld, 2012-2013). The reason for this is that informed consent cannot be given when you don't really know what you agree to when agreeing to have sex.

Sexual encounters involving deception that may qualify as sexual misconduct include (among many others) lying about the use of contraception, lying about your age, gender, marital status, religion or job, lying about having been tested for sexually transmitted diseases and infections, pretending to be someone’s partner, and falsely making the partner believe that the sexual act is a medical procedure.

For example: In 2009, California-resident Julio Morales was convicted for rape by fraud for sneaking into the dark bedroom of an 18-year old woman and having sex with her under the false pretense of being the woman’s boyfriend who had just left. The conviction was eventually overturned because the law of 1872 only criminalizes rape by fraud when someone impersonates a woman’s husband in order to get her consent. This loophole was closed when Assembly Bill 65 and Senate Bill 59 were signed into law in 2013.

In 2000 an Israeli man Eran Ben Avraham was convicted of fraud for pretending to be a pilot and a medical doctor in order to have sex with a woman. In Israel pilots and medical doctors are held in particularly high esteem by women and their mothers.

In 2010 a married Israeli Arab Muslim man, Sabbar Kashur, was convicted of rape by deception after pretending to be a Jewish bachelor interested in a long-term relationship prior to having sex with a Jewish woman he just met. His initial sentence of two years but his sentence was eventually reduced to nine months.

Starting in 2014 Ricardo Agnant posed as an NFL football player for the Miami Dolphins by the name of Maserati Rick in order to pick up women. He backed up his story by inventing a digital personality whose persona was based on images from his one-time participation in a regional combine at the Dolphins facility in 2014 as well as photoshopped images of Dolphin players. Agnant’s scam was revealed in 2017 but he was never tried or convicted.

As noted, sexual encounters involving deceit as a way to obtain “consent” may not in fact be consensual. Jed Rubenfeld argues for the stronger view that all sex by deception is non-consensual and therefore counts as rape. As he puts it, ‘sex-by-deception is always sex without consent, because a consent obtained by deception, as courts have long and repeatedly held outside of rape law, is “no consent” at all’ (2012-2013: 2).

There is no doubt that sex involving deceit can be morally reprehensible. However, it is less clear that deceit-based sexual acts are always morally wrong. Subjects may adhere to idiosyncratic consent rules that should not make the pursuing party guilty of rape. Suppose Jill would never consent to sex with someone whose father is older than seventy-five. Jack has always been embarrassed about having a very old father and thinks that he will be disliked or ridiculed if he reveals it. When he meets Jill and falls in love with her, he lies to her about his father’s age. The couple start a relationship and eventually agree to have sex.

This case involves deceit: Jill would never have had sex with Jack, if he had revealed his father’s real age. And Jack’s lie is not exactly okay. But Jack didn't rape Jill, as the sexual encounter cannot correctly be understood as non-consensual.

One way to capture when sex involving deceit qualifies as sexual misconduct is this: sexual encounters involving deceit are wrong when it is reasonable to believe that had you provided your sex partner with some information you have about yourself prior to the encounter, then he or she would not have agreed to have sex (owing to that information).

In the case of Jack and Jill, Jack could not have predicted that if he had told Jill how old his father was prior to their encounter, then Jill would not have agreed to have sex with him on the basis of this information. So, even though Jack did something wrong by lying, he didn't do anything wrong by proceeding to have sex with Jill.

By this 'logic' any woman wearing makeup or a push-up bra or having cosmetic surgery to appear younger is guilty of deceit. When it's a crime for a woman to lie about birth control to deceive a man (an actual online company sells tricks to feign pregnancy test results) maybe this will be taken seriously.

What follows from what you are saying is that you consider women who wear makeup deceitful.

Makeup is used to recreate neoteny and fix natural flaws. The fact that it's there for all to see doesn't diminish its effects. It's a form of "lying" to simulate youth, which nature prefers for reproduction.

And let's dispel this notion that women don't know what they're doing, they know exactly what they're doing. They "fall" for Maserati Rick-type con-men when they believe they can deceive them out of their (imaginary) wealth.

By this 'logic' any woman wearing makeup or a push-up bra or having cosmetic surgery to appear younger is guilty of deceit. When it's a crime for a woman to lie about birth control to deceive a man (an actual online company sells tricks to feign pregnancy test results) maybe this will be taken seriously.

No, by no sane logic would a man lying about being single, being a certain religion, being a naturally born man or woman be the same as wearing temporary and visible makeup or by a permanent plastic surgery.

Just as in advertising, there can be small inducements to purchase, making large outright lies are criminal.

-----"Suppose Jill would never consent to sex with someone whose father is older than seventy-five."

No matter what age the man who marries Jill is, eventually his father (if not deceased), would turn 75. Would Jill then refuse to have sex with this man once his father turned 75? Or does this age limit only apply to the initial sexual encounter and not to ones thereafter?

This is so ridiculous. Lying is part of the game. Both sides do it. Lying can be actively telling a falsehood or not telling a truth. So before I have sex with you, give me the weekend to document every aspect of who I am so you can make an informed decision. Then oh boy will we have such passionate love making. No one would ever have sex.

I've had sex with well over 100 women, and more than a few of them I'm pretty sure I didn't even get their real name. While I agree that if you have a disease, you should fess up. But I don't count on it, that's why I wear a rain jacket.

Becky didn't have an organism on a doctor. She had an orgasm with a washed-up musician. She wasted that night on a crap guy. She'll go out at night and get back into it. This time, she will ask to see a hospital badge.

Sex is not a business contract. We shouldn't consider empowering others by effectively interpreting it as such. Exploiting the whimsical sexual desires of others is not morally wrong enough to be a legal wrong.

It definitely shouldn't be considered rape to pretend to be a hot-shot doctor at a club for some vagina. It's stupid for sure. But those same women will have sex with non-doctors. It may just be the confidence and intelligence associated with doctors that the woman was attracted to. It's hard to know if being a doctor was a requirement. Dating is a bunch of pretenses. We pretend to be sane. We pretend to be as pretty as our makeup. We mislead about the size of our dicks. So what.

Sex with a doctor doesn't reap you the benefits of being in a relationship with a doctor. I think that a lot of our dating preference and sexual desires are rooted in associations, illogicality and whim which is too hard to winnow through in order to form a contract out of it.

George Mack,
Being in a relationship with a male doctor is way way way out of proportion to its reality. Male MD's are intelligent and disciplined enough to get through medical and make a decent salary, but they are not "gods gift to women". How many women doctors play the
"doctor card" game? There is fantasy in thinking that disposable income from having sex with a high wage earner means vacations & luxuries, but the reality is there is lots of skirt chasers wanting a relationship for a real male doc, especially good looking doctors and that in itself can turn ugly if the male doc likes all the attention from the skirt chasing women. I can see some man using the doc equation = skirt chaser women card though..pathetic

Is telling your intended bed mate "I love you" a deception akin to stating "no condom needed, I have only had one partner and I have tested negative for every disease possible." when you actually have AIDS? Of course not.
How about a supposedly straight married man, seducing his best male friend by getting him drunk and saying "buddy, I have always loved you" when he is actually just very hot and you want to have sex with him?
Even better, "sure honey, if you give me oral sex after I orgasm, I will return the favor." Of course after a man has a orgasm, the last thing he wants to do is preform oral sex on a woman. He would rather go to sleep or say goodbye.
This is the same mentality that is going on now that equates total allegations, with no evidence, that a man molested a woman, decades ago to a reported rape.
I don't no a normal person who hasn't lied in some manner to obtain sex. Most of the lies are so superficial as to be part of the mating process.

I've never liked those books/films/plays where the nebbish guy longs for a woman way out of his league, and ends up deceiving her by pretending to be someone she does find attractive. (Think various Shakespeare plays, Revenge of the Nerds, Nutty Professor). It's almost as if the guy is punishing the woman for turning him down. Classic pick up artist behaviour. Of course, being Hollywood it all ends up happily ever after, the woman falls for his nebbish charm and overlooks the deception, when really the nerd is just as cruel and manipulative as the jocks and popular guys he despises.

Rape is a horrific, violent crime. Lying to get somebody to date and/or be intimate with you isn't nice, but it isn't a violent crime. Since one doesn't need to have a physical advantage to lie to somebody, both genders would be equally eligible to be accused of this. It would be interesting to see how the proponents of these laws would react to women being sent to prison for a violent crime simply for lying about being single, birth control, etc.

Due diligence. Take responsibility for KNOWING the person you are going to have sex with. This whole 'victim' BS is crazy. In fact, three of the examples sound like gold-diggers who got played while trying to play their mark.

Right up there with the women who have sex willingly and then later regret or are embarrassed and then decide it was rape, after the fact, to displace their shame.

This whole infantilizing of women is WAY out of hand. They are adults and need to be responsible rather than credulous fools.

Due diligence. Take responsibility for KNOWING the person you are going to have sex with. This whole 'victim' BS is crazy. In fact, three of the examples sound like gold-diggers who got played while trying to play their mark.

Actually, in fact, you sound clueless. None of the stories indicate that the women got a dime. Furthermore, the deception was by the men, not the women.

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Right up there with the women who have sex willingly and then later regret or are embarrassed and then decide it was rape, after the fact, to displace their shame.

And who exactly is "right up there"? Any of Weinstein's women? Are you a doofus?

wrote:

This whole infantilizing of women is WAY out of hand. They are adults and need to be responsible rather than credulous fools.

Actually, you have it completely backwards. If you're talking about the big ruckus in the news, it's about empowering women to speak out about their real, actual, and substantial unfortunate experiences with the men essentially getting off scott-free, no pun intended.

Since the first response to me was full of assumption (of that never detailed in the article) and lacking in anything but unsupported assertion;

I will have to assume you disagree with my view that it would be a good to exercise due diligence. Care to explain why? I suppose you fall in the credulous fool category, and believe the world should look out for you, instead of taking responsibility yourself? Just guessing by your tone.

And you complain of petty insults? Where are your sound arguments and cogent reasoning?

wrote:

Since the first response to me was full of assumption (of that never detailed in the article) and lacking in anything but unsupported assertion;

Still no supporting arguments. I, in fact, outlined a few basic factual views.

wrote:

I will have to assume you disagree with my view that it would be a good to exercise due diligence. Care to explain why? I suppose you fall in the credulous fool category, and believe the world should look out for you, instead of taking responsibility yourself? Just guessing by your tone.

Still not a shred of argument to support your view.

OK, so let's get off the stupid back-and-forth you're presenting here, which is utterly boring. The ambiguity with your comment here is you seem to be going from the specific examples in this article and seeming to imply that this "victimization" of women is significantly part of the top topic in the news today, object of TIME's "person of the year". So, IN THAT CONTEXT, which a reasonable person can take from your comment, you seem to be suggesting that your comment about women in this article applies generally. You did not say so specifically, but all of language is always in a context. So please tell us what you meant more precisely.

I might have agreed with you except I was recently a victim of rape by deception. I am still dealing with the trauma of the experience. But, I am thankful this law exists because I can hold the person who harmed me accountable. The important thing to realize is that due diligence cannot protect you against a pathological liar. I knew this person for 3 years before this incident and the lie that he used to deceive me would not have been revealed through due diligence. Rape by deception is a real thing. I am a victim of it and - while I think it is a rare thing - as a Christian woman, I would have never had sex with this man had he not agreed to marriage. I was very clear about my beliefs, my views on marriage and sex. I was very clear that outside of marriage I would not have sex. He entirely violated our marriage and lied about his beliefs for sex. I feel entirely violated. What I gave him, I can never get back. I do not want to press charges against him but I feel so traumatized and violated. It is a real crime to deceive someone, especially someone who doesn't have sex. The physical, psychological and emotional trauma is overwhelming is all I can say. Try to think of all of the persons impacted by this law before you draw conclusions and remember this is a law protecting those who have been deceived. Those who deceive usually check out on paper. The person who did this to me is a prominent community member who everyone - from the mayor to the milkman - respects and loves. That's why it is called deception it isn't discoverable through due diligence.

I might have agreed with you except I was recently a victim of rape by deception. I am still dealing with the trauma of the experience. But, I am thankful this law exists because I can hold the person who harmed me accountable. The important thing to realize is that due diligence cannot protect you against a pathological liar. I knew this person for 3 years before this incident and the lie that he used to deceive me would not have been revealed through due diligence. Rape by deception is a real thing. I am a victim of it and - while I think it is a rare thing - as a Christian woman, I would have never had sex with this man had he not agreed to marriage. I was very clear about my beliefs, my views on marriage and sex. I was very clear that outside of marriage I would not have sex. He entirely violated our marriage and lied about his beliefs for sex. I feel entirely violated. What I gave him, I can never get back. I do not want to press charges against him but I feel so traumatized and violated. It is a real crime to deceive someone, especially someone who doesn't have sex. The physical, psychological and emotional trauma is overwhelming is all I can say. Try to think of all of the persons impacted by this law before you draw conclusions and remember this is a law protecting those who have been deceived. Those who deceive usually check out on paper. The person who did this to me is a prominent community member who everyone - from the mayor to the milkman - respects and loves. That's why it is called deception it isn't discoverable through due diligence.

Disease and Marital Status are of paramount importance.
When it comes down to age, looks, job and even religion well those are harder to prove or count as damaging.

But any man/woman who knows they have an STD and/or is still married and lies about it, should be punished harshly.

I'm the victim of a brilliant mastermind evil guy.

He knew that I simply never ever date anyone who is not single and more importantly, certainly not someone who is still married.

This monster went as far as to create a FAKE divorce decree.

And it was impossible to verify because of privacy rights.

He even had friends back up his lies.

So yes, I completely understand you when you say due diligence can only go so far.

No I presumed I was replying to a feminist. Correctly I think. Call me what you like, accuse me of being whatever you want. Your opinion means nothing to me. The only difference between you and a sack of shit is the sack.

No I presumed I was replying to a feminist. Correctly I think. Call me what you like, accuse me of being whatever you want. Your opinion means nothing to me. The only difference between you and a sack of shit is the sack.

Bull. If my opinion meant nothing, you wouldn't reply. Your reasoning ability amounts to about what would be in the sack you describe so eloquently.

*sigh* I was just clarifying rather than engaging. My "reasoning ability" (which is awesome) can only be applied during interactions with fellow reasoning people. Ruling feminists out instantly. As a male feminist you are either a victim of Stockolm Syndrome or you are some modern equivalent of a Jewish Nazi. So goodbye and have a crap life. You earned it and deserve it.

*sigh* I was just clarifying rather than engaging. My "reasoning ability" (which is awesome) can only be applied during interactions with fellow reasoning people. Ruling feminists out instantly. As a male feminist you are either a victim of Stockolm Syndrome or you are some modern equivalent of a Jewish Nazi. So goodbye and have a crap life. You earned it and deserve it.

Why bother engaging this fool? He seens quite obviously to be some kind of bitter misogynist sexis He has his mind made up- llikely a entitled white male. He likely had a bad experience with women- presumably of low character, if indeed they even truly did anything wrong- because that was all he could attract!

*sighs again* so on top of everything you don't even know how Godwin's Law works either. Right, I don't have the time nor the crayons to explain in full just how idiotic you seem to be, so I will just say the Jewish Nazi remark was analogous. Very worrying that you did not realise that. I was referring to your ontology, not your actual ideas, otherwise I would just have said 'Nazi.' THAT would be Godwin's Law.

Perhaps if I used the term 'collaborator', is that any clearer?

My point is that your special blend of stupidity and resolution are an act of treason against your immutable characteristics. Specifically, a man with a pathological hatred of completely innocent men and is willing to collaborate in their destruction. Siding with the enemy. Possibly in the hope of sleeping with the enemy.

If we are throwing rhetorical terms about, that 'special blend of stupidity and resolution', woven throughout your dismal attempts at rhetoric ("doofus"? Come on, now) and reason, is a clear example of the Dunning Kruger effect. As if we needed any more.

*sighs again* so on top of everything you don't even know how Godwin's Law works either.

Actually, I do, and your pompous "nuances" don't get you off the hook.

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My point is that your special blend of stupidity and resolution are an act of treason against your immutable characteristics. Specifically, a man with a pathological hatred of completely innocent men and is willing to collaborate in their destruction. Siding with the enemy. Possibly in the hope of sleeping with the enemy.

Pompous words, devoid of much meaning. Put away your dictionary and learn how to think.

wrote:

If we are throwing rhetorical terms about, that 'special blend of stupidity and resolution', woven throughout your dismal attempts at rhetoric ("doofus"? Come on, now) and reason, is a clear example of the Dunning Kruger effect. As if we needed any more.

"Doofus" aptly applies to anyone making an argument referencing Nazi and then trying to explain it's not Godwin's Law.

Since you mentioned the "crayon level", how do you in your head derive the surface area of a sphere from knowlege of its volume being (4/3)*pi*r^3. Not the forumla, but describe in a few short WORDS the approach you'd use to derive it in your head. Simple calculus. Just wonder if you're beyond the crayon level yourself since you brought that up.

As for your stupid talk about feminism and "cesspool" blather, which sounds pretty dumb to me... I have to be blunt with you. I have yet to meet a man who ways things like that who's in a good relationship with an attractive girlfriend who's giving him lots of good sex. So my observation is that in every case a guy sounds like you, it's a pretty sure-fire call that it's just poorly veiled sexual frustration dressed up as pompous political theory against women to get back at women for sexual rejection. Yeah, tell me it ain't so.

what about if a guy pretends he really likes you and so you decide to entertain him because you also like him, then as you talk more (because you're basically chatting all day, every day) you tell him you're sick of all the married/attached guys coming onto you so he makes up this long elaborated lie to 'prove' he isn't like that and is definitely separated, so he knows he needs to lie to you to keep you interested, and you do eventually consent to having sex, then his wife finds out and you find out he actually is still with her and they never split up. i think that's getting sex without consent as he knew and lied, it's traumatising for someone to pretend they are not something you don't want to have sex with.

i meant it's traumatising to the person who had sex with them. you had sex with someone who you would've said no to if you'd known the truth.

even though it wasn't violent it has caused the victim mental distress. there should be some sort of protection from this because it's not normal to lie to get sex at all, it's manipulative, creepy, and predatory.

I'm not at all sure what the answer is here, and I certainly wouldn't like to have to enshrine all this in legislation, but I'm becoming increasingly uncomfortable with what now counts as "rape".

A man dragging an unconsenting woman into the bushes is clearly rape. A man (or woman) who lies (as opposed to bending the truth slightly) to get someone to have sex with them is clearly despicable - but is that always rape?

But the example of the man whose father was over 75? Come on, now. Don't you think that this might be part of the reason "real rape" (no howls of protest, please) conviction rates might be so low? Daft things like this might now have to be considered as the withholding of informed consent, therefore rape? As the man above said, I'd also have thought padded bras could now fall into the same "deception" category!

Ps - I am a woman and I am a feminist. Equal rights, equal opportunity, equal pay. I do not need protecting like a small child. What happened to common sense and judgement?

bf and I are swingers.
So the woman in another couple asked us to swap then while I was playing with the guy she noped out and left my bf without doing anything. I feel violated because I know for sure that had I had the hindsight I would have NEVER done it, also this couple has cheated other couples as well. Is it rape by deception?

If you ask me it surely is, not to mention that It's been causing a lot of psychological distress and my bf, who's way more experienced than me, told me that way too many couples ended up arguing over this kind of abuses and eventually broke up.

No, I think you've lost your mind. She meant it more generally, and in particular I'd interpret it to be her agreeing to have sex when she shouldn't have. If you're still having trouble grasping that, read her sentence again:

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I feel violated because I know for sure that had I had the hindsight I would have NEVER done it,

That's "I would have NEVER done it". What part of that are you having difficulty with?

One of the reasons human beings learn and inherently posses (Like the butterfly, the chameleon, any hosts of other organisms) the behaviour and the ability of deception, is for personal satisfaction, which is also a inherent need. When it comes to deception, sneakiness and disloyalty, I firmly believe the female of our species wins. I am sick of being treated like an ATM by prostitutes.

my partner of 10 years, sprung bdsm on me, one night. I did not expect it and froze speechless. I had to go to the dr for my injuries. He choked me, and bit me umong other things. Now I am alone. He said it was an accident, not abuse I disagree. He said I should have said something if I didnt like it. He said I over reacted when I broke down. Terror can come out of the blue, even from those you love